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Beyond Race in Affirmative Action: The Harm of Racial Preferences—A Commentary by Peter H. Schuck

The following commentary was published in The New York Times on February 23, 2012.

Beyond Race in Affirmative Action: The Harm of Racial Preferences
By Peter H. Schuck

ROOM FOR DEBATE Introduction: The Supreme Court has agreed to hear Fisher v. Texas, a major case involving affirmative action in higher education. The decision in this case could end racial preferences in admissions — moving up the timetable from the justices’ 2003 ruling in Grutter v. Bollinger, which said, “The court expects that 25 years from now, the use of racial preferences will no longer be necessary.”

Is it time for colleges and universities to move past race? How can we tell when race-based preferences are no longer necessary?


In Justice Sandra Day O’Connor’s majority opinion in the 2003 Grutter v. Bollinger decision upholding the University of Michigan Law School’s race-conscious affirmative action program, she stated the majority’s naïve expectation that 25 years later, such programs would be unnecessary. Texas’s race-conscious program, which the U.S. Supreme Court has just agreed to review, shows that this prediction was naïve. With more than a third of that time elapsed, we are further than ever from that goal. Indeed, if the court upholds the Texas plan, we will know for certain that we will never reach it.

The reason for my grim conclusion is simple: Texas, which knows a thing or two about goal posts, is continually moving them back — and political pressure from minority activists will never cease. It is not enough that the state’s Top Ten Percent Plan, which was purposefully adopted in 1997 as a race-neutral way to increase minority enrollments in the University of Texas system, increased the minority numbers substantially — to 21.4 percent in 2004. Shortly after Grutter was decided, U.T. went still further, taking race into account explicitly in deciding about the roughly 20 percent of the student body not already admitted under the Top Ten Percent Plan. By the class entering in 2010, this race-based policy produced 23.1 percent Hispanics, 5.1 percent blacks and 17.3 percent Asians. When other categories are included, it is America’s first majority-minority student body. Since Asians are now “over-represented” in the state’s race-obsessed thinking, Texas is pitting everyone against them in a zero-sum game. This is hardly conducive to good race relations.

Yet even this was not enough racial preference for the U.T. system. It now demands racial balancing not only at the campus level, but also in each classroom, which presumably can only be accomplished through racial balancing at the level of programs, majors and courses.

I have explained elsewhere why race-based preferences, while possibly constitutional in the case of blacks, are corrosive public policy, and why Grutter was a poorly reasoned decision. For the court to uphold the Texas system would compound the felony.

Peter H. Schuck is a law professor at Yale University, visiting at Fordham this semester. He is the author of "Diversity in America: Keeping Government at a Safe Distance."